An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA05-469


Filed: 03 January 2006


v .                         Guilford County
                            No. 02 CRS 101498-99

    Appeal by defendant from judgment entered 9 July 2004 by Judge Henry E. Frye, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 29 November 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State.

    Attorney Brian Michael Aus, for the defendant-appellant.

    STEELMAN, Judge.

    James Alton Dean (defendant) appeals his conviction for the offenses of incest and sex offense in a parental role. For the reasons stated herein, we find no error.
    AR, then age seventeen, was the stepdaughter of defendant. She lived with her mother and defendant. On 30 May 2002 AR was home with her sister, brother, and defendant. Her mother was at work. AR went into the bathroom to take a shower. Defendant followed her into the bathroom, shut the door, and demanded that she remove her pants. Defendant, after unsuccessfully attempting to have anal sex with her, had vaginal intercourse with her. Defendant then took a shower, telling AR to clean up and not tellher mother. AR called 911, reporting that she had been raped by her stepfather, and was taken by ambulance to a hospital.
    At the hospital, AR was examined by a nurse. The examination revealed five vaginal tears and a reddened cervix, all consistent with recent nonconsensual intercourse. DNA obtained from vaginal swabs taken from AR matched that of defendant.
    The State charged defendant with Second Degree Rape, Attempted Second Degree Sex Offense, Sex Offense in a Parental Role, and Felony Incest. Defendant pled not guilty to all charges. The jury found defendant not guilty of the charges of Second Degree Rape and Attempted Second Degree Sex Offense but found him guilty of Sex Offense in a Parental Role and Incest. The trial court sentenced him to consecutive active sentences of 25-39 months for Sex Offense in a Parental Role and 16-20 months for Incest.
    We chose to address defendant's fourth argument first. In defendant's fourth argument, he contends that it was plain error for him to be prosecuted for both the crime of Sexual Offense in a Parental Role under N.C. Gen. Stat. § 14.27.7(a) and Incest under N.C. Gen. Stat. § 14-178(a). We disagree.
    Defendant argues that conviction under both statutes constitutes double punishment for the same criminal act, which is prohibited under both the United States Constitution and the Constitution of the State of North Carolina. Defendant has failed to properly preserve the matter for appeal and now asserts plain error. However, our Supreme Court has held that plain error analysis only applies to jury instructions and evidentiary matters. State v. Wiley, 355 N.C. 592, 615, 565 S.E.2d 22, 39 (2002). Therefore defendant has not preserved this issue for appellate review. Id.
    Even assuming arguendo that this issue is properly preserved for appeal, defendant's argument is without merit. The Fifth Amendment of the United States Constitution and Art. I., sec. 19 of the North Carolina Constitution prohibit multiple punishments for the same offense arising out of a single transaction, absent clear legislative intent to the contrary. See Missouri v. Hunter, 459 U.S. 359, 365, 74 L. Ed. 2d 535, 542 (1983); State v. Etheridge, 319 N.C. 34, 50, 352 S.E.2d 673, 683 (1987). “Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 309 (1932).     It is clear that Incest and Sex Offense in a Parental Role are two distinct offenses which require distinct proof of facts. N.C. Gen. Stat. § 14-178(a), entitled Incest, states:
A person commits the offense of incest if the person engages in carnal intercourse with the person's (i) grandparent or grandchild, (ii) parent or child or stepchild or legally adopted child, (iii) brother or sister of the half or whole blood, or (iv) uncle, aunt, nephew, or niece.

In contrast, the relevant portion of N.C. Gen. Stat. § 14-27.7(a), defines Intercourse and Sexual Offenses with Certain Victims:
If a defendant who has assumed the position of a parent in the home of a minor victim engagesin vaginal intercourse or a sexual act with a victim who is a minor residing in the home, . . . the defendant is guilty of a Class E felony.

    To commit the crime of incest, the parties must engage in carnal intercourse and a familial relationship must exist. “The gravamen of the crime of incest is intercourse between parties within the degree of relationship set out in the statute.” State v. Collins, 44 N.C. App. 27, 30, 259 S.E.2d 802, 804 (1979). In contrast, a sexual offense in a parental role requires that the party must be a “minor victim,” and “[p]enetration is not essential to support a conviction of sexual activity by a substitute parent.” State v. Hoover, 89 N.C. App. 199, 208, 365 S.E.2d 920, 926 (1988). Consequently, the custodial sex offense under N.C. Gen. Stat. § 14.27-7(a) in the instant case required proof of facts not required for the crime of incest under N.C. Gen. Stat. § 14-178. Double jeopardy considerations are not implicated.
    This holding is consistent with well-established North Carolina case law finding that sexual offenses and offenses against public morality and decency are separate and distinct offenses with distinct proof of facts. In State v. Etheridge, 319 N.C. 34, 352 S.E.2d 673 (1987), the defendant was convicted of statutory rape, taking indecent liberties with a child, and incest for each episode of intercourse with his daughter. He was also convicted of crimes against nature, taking indecent liberties with a child, and sexual offense in the second degree after engaging in anal sex with his son. Our Supreme Court held that in each case, the offenses against both the son and the daughter were “legally separate anddistinct crimes and that convictions for all three crimes arising out of the same transaction did not place defendant in double jeopardy.” Id. at 51, 352 S.E.2d at 683. See also State v. Weaver, 306 N.C. 629, 295 S.E.2d 375 (1982), overruled on different grounds, State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993) (indecent liberties is not a lesser included offense of statutory rape); State v. Collins, 44 N.C. App.27, 259 S.E.2d 802 (1979) (statutory rape is not a lesser included offense of incest); State v. Hoover, 89 N.C. App. 199, 365 S.E.2d 920 (1988) (crime against nature is not a functional equivalent of a lesser included offense of sexual activity by a substitute parent); State v. Copeland, 11 N.C. App. 516, 181 S.E.2d 722 (1971) (indecent liberties is not a lesser included offense of crime against nature). This argument is without merit.
    In defendant's first argument, he contends that he should have only been prosecuted for the specific crime of Incest and not the general crime of Sexual Offense in a Parental Role. We disagree.
    Defendant did not raise this issue at trial, and has thus not preserved it for appellate review. N.C. R. App. P. Rule 10(b)(1) . We note that defendant attempts to preserve plain error review of this issue in the assignment of error upon which this argument is based. However, defendant does not argue plain error in his brief in violation of N.C. R. App. P. Rule 28(b)(6), and because this issue involves neither evidentiary matters nor jury instructions, it is not subject to plain error analysis. Wiley, 355 N.C. at 615, 565 S.E.2d at 39.    Notwithstanding his failure to preserve this issue for appeal, defendant's claim is without merit. Defendant argues that under Clark v. Visiting Health Prof'ls, Inc., 136 N.C. App. 505, 508, 524 S.E.2d 605, 607 (2000), a specific statute controls over a general statute if the two cannot be reconciled.
        Where there is one statute dealing with a subject in general and comprehensive terms, and another dealing with a part of the same subject in a more minute and definite way, the two should be read together and harmonized...but, to the extent of any necessary repugnancy between them, the special statute...will prevail over the general statute.

Krauss v. Wayne County Dep't of Soc. Servs., 347 N.C. 371, 378, 493 S.E.2d 428, 433 (1997). However, as discussed above, Incest and Sex Offense in a Parental Role are separate crimes, requiring proof of distinct facts, even when arising out of the same act. This argument is without merit.
    In defendant's second argument, he contends that the trial court erred in failing to dismiss the charge of Sexual Offense in a Parental Role due to insufficient evidence that AR was a minor at the time of the offense. We disagree.
    N.C. Gen. Stat. § 14-27.7(a) applies to those who have assumed the position of a parent in the home of a “minor victim.” Defendant argues that the statute does not define the age of a minor within the statute and points to several other statutes that specifically state that the offender or the victim must be under or over the age of sixteen. See, e.g., N.C. Gen. Stat. § 14-202.1(a) (taking indecent liberties with children requires that the child beunder the age of 16 years and the perpetrator at least five years older than the child in question); N.C. Gen. Stat. § 14-202.2 (defining when a person who is under the age of 16 years is guilty of taking indecent liberties with children); N.C. Gen. Stat. § 14- 202.3 (a person is guilty of solicitation of a child by a computer if the person is 16 years of age or older); N.C. Gen. Stat. § 14- 27.7A (statutory rape or sexual offense of person who is 13, 14, or 15 years old); N.C. Gen. Stat. § 14.39(a) (kidnapping victims include those sixteen years of age or younger without the consent of a parent or legal custodian of such person); N.C. Gen. Stat. § 14-178(b)(1)b. (a person who commits incest is guilty of a Class B1 felony where the child is 13, 14, or 15 years old and the offender is at least four years older than the child)).
    None of the statutes to which defendant cites defines a minor as being sixteen years or younger. Further, none of the cited statutes apply to N.C. Gen. Stat. § 14-27.7(a). If the legislature had intended that a minor be defined as being under the age of seventeen for purposes of this statute, they could easily have so stated. The definition of a minor is governed by N.C. Gen. Stat. § 48A-2, which states that “[a] minor is any person who has not reached the age of 18 years.” Since AR was seventeen at the time of the offense, she had not reached the age of majority and was therefore a “minor victim,” as specified under N.C. Gen. Stat. 14- 27.7(a). This argument is without merit.     In defendant's third argument, he contends that it was plain error for the trial court to instruct that a minor is a person who has not attained the age of eighteen years. We disagree.
    Because we have held that the word “minor” refers to a person under eighteen years of age for the purposes of N.C. Gen. Stat. § 14-27.7(a), we further hold that the judge's instruction to the jury was proper under the law. This argument is without merit.
    Because defendant has not argued his other assignments of error in his brief, they are deemed abandoned. N.C. R. App. P. Rule 28(b)(6) (2003).
    Judges WYNN and SMITH concur.
    Report per Rule 30(e).

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